*1 9H monthly equal amount one a. to GERALD W. VANDE C.J., MARING, sixty-seven times MARY hundred MUEHLEN JJ., SANDSTROM, DALE V. hourly wage; federal minimum concur. equal An of b. amount to six-tenths Honorable DANIEL J. gross earnings prevailing per- of participate CROTHERS did not similar history sons with work decision. qualifications
occupational who any place
work in within one hun-
dred miles of [160.93 kilometers] place obligor’s actual of resi-
dence; or equal ninety
e. An
percent
amount
to
farming for years the last five averaged July 2005. $33,538per year. There also Bladow had a income from negative farm-
ing year for each from through
The evidence establishes Bladow incurred self-employment from
losses more than
forty years percent averaged. of the We farming
conclude Bladow’s losses should
not have been to used reduce his other County, from
income Wilkin and the court as a in failing
erred matter law to
comply guideline requirement with the the “losses were calculated for no forty years
more than percent aver-
aged.” We conclude remand is neces-
sary properly calculate child Bladow’s
support obligation.
IV
[¶ 22] We affirm the trial court’s custo- fees,
dy attorney decision and award of
and we reverse the court’s determination support obligation Bladow’s child proceedings.
remand further *2 Fraase, Prosecutor,
Paul Bis- H. marck, N.D., appellee. plaintiff for and Mandan, Tuntland, N.D., for Thomas M. appellant. defendant and SANDSTROM, Justice. appealed from a Judkins
[¶ 1] Jenae upon jury entered a judgment of conviction finding verdict while affirm, influence of alcohol. We results concluding of a blood alcohol test was harmless. early morning In the hours 5, 2004, County Burleigh Deputy June Ball noticed a trav- Jeffrey Sheriff vehicle one-way eling wrong way street city Deputy Ball con- of Bismarck. tacted office and told them an dispatch traveling wrong older tan Pontiac way on He asked them to Seventh Street. Full- contact Police Officer Clint Bismarck er, Deputy whom Ball knew was in the call, responded to area. Officer Fuller Pontiac, eventually located tan stopped Deputy Ball arrived the vehicle. vehicle, stopped that the driv- verified Judkins, he by en was the one had ob- way traveling wrong on Sev- served enth Street. conducted a Hori- Fuller
[¶ 3] Officer
test, a
Nystagmus
zontal Gaze
“walk
“one-legged
test.
turn”
stand”
tests,
sobriety
Judkins failed these field
her for
Fuller arrested
Officer
was trans-
under the influence.
Judkins
a blood
hospital
rights
to a
alcohol which does not affect substantial
ported
analysis
subsequent
Judkins’s
disregarded.”
test.
be
shall
N.D.R.Crim.P.
sample
52(a).
the State Toxi-
conducted
Even
constitutional
federal
errors
cologist’s office
blood alcohol
showed
automatically require
reversal if
do
*3
(“BAC”)
percent.
of .23
content
harmless,
they
is shown
were
but before a
federal constitutional error will be held
charged
driving
with
4] Judkins was
[¶
harmless, the court must be able to declare
driving
the
of alcohol and
under
influence
of
a belief that the error was
percent
a blood alcohol content
.08
harmless be
with
trial,
jury
See,
greater. At Judkins’s
the
yond
e.g.,
or
reasonable doubt.
Clark
¶
objection the
State,
15,
court admitted over
results
9,
576;
v.
2001 ND
621 N.W.2d
jury
¶
blood
found Judkins
of the
test. The
134,
Syvertson,
38,
v.
ND
State
1999
597
driving
of
under the influence of
guilty
652;
Baer,
City
N.W.2d
Mandan v.
of
alcohol,
driving with a
but not of
BAC of
¶
101, 10,
559;
1998 ND
N.W.2d
578
State
A
percent
greater.
judgment
or
of
.08
(N.D.
Chihanski,
621,
v.
540 N.W.2d
623
verdict,
jury
was entered on the
conviction
1995);
Klose,
39,
see also State v.
2003 ND
appealed.
Judkins
(“a
¶ 32,
THE COURT: disregarded this case the blood test re made a mean that form to presumed sults. Jurors are to follow the guilty that defendant finding given by E.g., trial court. instructions influence, but did not under the driving ¶42, 31, 692 Ramsey, State v. 2005 ND guilty of finding that she was make Thill, 498; N.W.2d State 2005 ND alcohol concentra- driving with ¶ 12, 230. The N.W.2d reading Am I of .08. tion of in excess specifically guilty case found Judkins correctly? alcohol, the influence of but “Yes, juror responded, The presiding also she was not found polled was then that’s correct.” *4 greater percent. a than .08 with BAC juror re- request, and each at Judkins’s other ample There was evidence [¶ 11] they agreed with the verdict sponded that jury than the results from which the test as read. the could find Judkins was addition, during In deliberations [¶ 9] influence. The officers testified Judkins sent note to trial court jury the had the one-way way on a wrong was the proof for the the asking about burden a.m.; 5:00 she approximately street at alcohol; blood test: failed numerous smelled of she balance; tests; sobriety poor had field she prosecu- on the proof Is the burden of on gotten was confused and had lost she prove [sic] tion on the blood acohal to home; way makeup her was smeared accurate) (that the so machine and, unkempt; be- and her hair was she is that the test accurate? when belligerent came arrested. angry counsel, consulting the trial After with record, jury that this clear the On is prose- the responded court to the in- disregarded the test results and blood of proving cution has the burden stead found Judkins offense, directed to charged driving-under-the-influence violation on given previously instruction review are con- the basis of other evidence. We tests, stated: chemical which test vinced that admission verdict, results did not contribute case of the concentra- In this any and therefore error alcohol in the defendant’s blood tion of beyond reasonable results was harmless the form of the results was received in doubt. of a chemical test. judgment is af- The of conviction [¶ 12] admitting the results of a chemical By firmed. evidence, the not test into Court does an imply that the test administered was DALE V. SANDSTROM defen- or reliable test of the accurate KAPSNER, JJ., CAROL RONNING concentration. The dant’s blood alcohol concur. reliability is accuracy and of the test DANIEL The Honorable J. [¶ 14] solely for question of fact which is left participate did CROTHERS your determination. decision. are not bound the results You Justice, concur- VANDE Chief you If a reason- chemical test. have specially. ring as to or reliabili- accuracy able doubt avoids, results, the mo ty majority test or the [¶ 15] of the chemical ment, § 39- of N.D.C.C.1 the encounter you disregard must it.
915
20-07 with the recent decision of the Unit
the exclusion of evidence which should be
admitted because whether certain evi-
dence had or would have influence conjectural,
with the is see State
v.Entze, (N.D.1978) 272 N.W.2d
(VandeWalle, J., concurring and dissent- However,
ing). I am instance con- question
vinced that from the deliberations,
during the failure of the
jury to convict per on the se offense of
driving under the influence of alcohol convicting
while on the charge of alcohol, under the influence of
judge’s specific questions to the when
it returned its verdict and the overwhelm-
ing supporting the conviction on general charge leads us to this result.
Although say I cannot the admission of disregarded by
the blood test was obviously deciding was not the factor in jury’s verdict.
[¶ 17] concur in the result reached majority opinion. GERALD W. VANDE
C.J., MARING, and MARY MUEHLEN
J., concur.